European New Legal Realism: Towards a basic science of law

Abstract

This chapter outline the position of European New Legal Realism (ENLR) and compares it to variations of American Legal Realism (ALR), new and old. We argue that the fundamental difference between the ENLR and ALR is its turn – or return – to epistemology. Europe legal realism has been – and, in our view, is – largely concerned with devising the foundations of a scientific study of law, one that can make law intelligible on scientific grounds. It is in search of the premises of law as a basic science – and a science on par with all other forms of academic endeavour, including the natural sciences. To make this argument, we first outlines the intellectual roadmap of our position before turning to questions of the epistemology of legal science. We draw on the unique insights offered by a combination of Weberian interpretive sociology of law and Scandinavian realism as propounded by Alf Ross. We draw out their strikingly congenial conceptions of legal validity as a genuinely empirical object of study, and how it differs from American legal realism and its reliance on pragmatism. Against this background, in part IV, we then link these precursors of European legal realism to the program for a rigorous science of law laid out by Pierre Bourdieu with a view to the particular challenges of studying law. We argue that to make law intelligible as an object of legal realist inquiry, one needs to devise an approach that, at one and the same time, takes seriously both the production of law and those precise – yet changing – social conditions, which makes that production possible.